Comparison of Rules and Procedures in Tribunals that Try Individuals for Alleged War Crimes

In military commissions and courts-martial, an accused is entitled to be represented by at least one military defense counsel at no cost to him or her. He or she may also hire a civilian attorney. An accused in a military commission or in an Article III Court where the death penalty is an authorized punishment, unlike an accused in a court-martial, is entitled to an additional lawyer at no cost who is learned in the applicable law relating to capital cases.

Sources: MCA 2009, 10 U.S.C. §§ 949a, 949d; Rule for Courts-Martial 804; Federal Rule of Criminal Procedure 43.

To ensure qualified representation and for security purposes, a civilian counsel in military commissions must: (A) be a United States citizen; (B) be admitted to the practice of law in a State, district, or possession of the United States, or before a Federal court; (C) not have been the subject of any sanction or disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct; (D) be determined eligible for access to information classified at the level Secret or higher; and (E) have signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings. The other courts contain some limitations similar to requirements (B) and (C).

Sources: MCA 2009, 10 U.S.C. § 949c; UCMJ art. 38, 10 U.S.C. § 838; Federal Rule of Criminal Procedure 44.

Sources: MCA 2009, 10 U.S.C. §§ 949a, 949d; Rule for Courts-Martial 804; Federal Rule of Criminal Procedure 43.

Military commissions, courts-martial, and Article III courts may not try an accused twice for the same offense.

Sources: MCA 2009, 10 U.S.C. §§ 949h, 950d(d)(b); UCMJ arts. 44, 62, and 63, 10 U.S.C. §§ 44, 62, and 63; U.S. Const. amend. V; Federal Rule of Criminal Procedure 31.

Each of these courts guarantees protection against compulsory self-incrimination. None of them admit statements against an accused that are the result of torture or cruel, inhuman, or degrading treatment.

In general, statements given to law enforcement officials during custodial interrogation are only admissible in courts-martial and Article III courts if the law enforcement official gave the suspect a Miranda or Miranda-type warning prior to questioning, and the defendant's statements were otherwise voluntary. In some limited circumstances in Article III courts, statements given without any warnings may be admissible if they were otherwise given voluntarily.

Military commissions evidentiary rules do not require Miranda or Miranda-type warnings. However, the admissibility of an accused's statement in a military commission will depend on whether "the totality of the circumstances renders the statement reliable and possessing sufficient probative value" and, if so, whether the statement was made voluntarily, unless the statement was made "incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement." These rules recognize that Miranda-type warnings may not be appropriate or required in some contexts, and that a military judge may find that there are circumstances where statements taken in this environment are no less reliable.

Sources: MCA 2009, 10 U.S.C. §§ 948r(c), 949a(b)(3)(B); Military Commission Rule of Evidence 304(a)(2); UCMJ art. 31, 10 U.S.C. § 831; Military Rule of Evidence 304; U.S. Const. amend. V; Miranda v. Arizona, 384 U.S. 436 (1966).

Sources: Rule for Military Commissions 406; UCMJ art. 32, 10 U.S.C. § 832; Rule for Courts-Martial 405, 406; Federal Rule of Criminal Procedure 6.

The judge in a military commission or a court-martial is a senior military officer and lawyer who is trained and certified to be a military judge. The members in a military commission, who play a role similar to that of a jury in civilian trials, are active-duty commissioned officers in the U.S. military. They are selected by the Convening Authority for Military Commissions from a list of nominations received from each military service. The Convening Authority must select members who are the best-qualified by reason of age, education, training, experience, length of service, and judicial temperament.

In courts-martial, the members are active-duty commissioned officers selected by the convening authority from within the command of the service member facing court-martial. The accused may also request to be tried by a mixed panel of commissioned officers and enlisted service members. In military commissions and courts-martial where the death penalty is not an authorized punishment, there must be no fewer than 5 members on the panel. In capital cases, there must be no fewer than 12, except in very limited circumstances. In courts-martial, a service member may request to be tried by the military judge alone. All military commissions cases have panels of members.

In Article III Court, jurors are randomly selected citizens of the jurisdiction where the court sits. A judge determines whether they are qualified to be jurors. "Qualified" means over 18 years of age; able to read, write, understand, and speak English proficiently; not incapable of sitting as a juror by reason of mental or physical infirmity; and not charged with or previously convicted of a felony offense. Each jury has 12 jurors. A defendant in Article III Court may request to be tried by the judge alone.

Sources: MCA 2009, 10 U.S.C. § 949m(c); Rules for Military Commissions 501(a)(2)–(3), 501(a), 503(a); UCMJ art. 25a, 10 U.S.C. § 825a; Rules for Courts-Martial 501(a)(1)(B), 502(a), 503(a).

An accused convicted by a military commission may have his case reviewed by up to four review authorities. First, the Convening Authority for Military Commissions reviews the findings and the sentence. The Convening Authority may reduce the severity of the findings or sentence but may not increase them. After the Convening Authority's action on the case, it will be automatically reviewed by the United States Court of Military Commission Review (USCMCR), unless the accused waives appellate review. However, an accused may not waive appeal in any military commission in which the death penalty was adjudged. Either party may appeal the holding of the USCMCR to the United States Circuit Court for the District of Columbia Circuit. From there, the parties may seek review by the United States Supreme Court. A provision in the 2006 Military Commissions Act that limited access to habeas corpus review in the federal courts was not included in the 2009 Military Commissions Act.

Military commissions appellate review is similar to the appellate review available in courts-martial, where review begins with the convening authority. After that, an accused may appeal to the appropriate service Court of Criminal Appeals. Either party may then request review by the United States Court of Appeals for the Armed Forces. From there, the parties may seek review by the United States Supreme Court.

In Article III courts, a defendant may appeal a conviction to the appropriate United States Circuit Court of Appeals. From there, either party may request review by the Supreme Court. In some instances, the prosecution may appeal a sentence. In military commissions, courts-martial, and Article III courts, the prosecution may not appeal an acquittal.

Sources: MCA 2009, 10 U.S.C. §§ 950b, 950c, 950f, 950g; UCMJ arts. 60, 66, 67a, 10 U.S.C. §§ 860, 866, 867, 867a; 28 U.S.C. §§ 1291–92.

The policy in each of these courts and tribunals is for public proceedings. Military commissions and courts-martial each have specific provisions for closing the proceedings if necessary for specific purposes, such as protection of classified information or the safety of individuals. All of these courts are required to take steps to protect certain information and the safety of individuals involved in the proceedings.

Sources: MCA 2009, 10 U.S.C. § 949d(c); Rule for Military Commissions 806; Rule for Courts-Martial 806; U.S. Constitution, amends. I, VI.

Hearsay evidence is generally inadmissible in courts-martial and Article III courts unless it fits within one of more than 25 exceptions and meets other constitutional requirements. Cases in these courts typically follow a law enforcement investigation, including identification and tracking of witnesses in anticipation of a prosecution. By contrast, military commissions typically arise from conduct committed during ongoing armed conflict. The prosecutors and defense counsel must often rely on evidence gathered during military or intelligence operations and on the statements of witnesses whose availability, for example, may be impacted by ongoing hostilities. Therefore, military commissions evidentiary rules provide for a more flexible hearsay analysis than that available in courts-martial or Article III court. The military commissions rules allow the defense and the prosecution to use hearsay evidence as long as a military judge finds that the witness is not available to testify, and that the hearsay itself is reliable, material, and probative, and that admission of the hearsay statement into evidence best serves "the general purposes of the rules of evidence and interests of justice."

Sources: MCA 2009, 10 U.S.C. § 949a(b)(3); Military Commission Rules of Evidence 801, 803, 805, 807; Military Rules of Evidence 801–807; U.S. Const. amend. VI; Federal Rules of Evidence 801–807; Crawford v. Washington, 541 U.S. 36 (2004).

In courts-martial and Article III courts, the evidentiary rules generally require that physical evidence gathered by law enforcement must have been obtained through the use of a search authorization. In military commissions, the prosecution must often rely on evidence gathered during military or intelligence operations, in which search authorizations may not have been appropriate or required. Military commissions evidentiary rules therefore do not require that physical evidence was obtained pursuant to search authorizations. However, the accused is entitled to the suppression of evidence that "is not reliable or probative" and evidence "the probative value of which is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members; or considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Sources: MCA 2009, 10 U.S.C. §§ 948r, 949a(b)(2)(E), 949a(b)(2)(F), 949a(b)(3)(A)–(C); Military Rules of Evidence 311, 315, and 317; U.S. Const. amend. IV.